Where the Supreme Court finds that the certificate is not in compliance with the requirements of article 134(1)(c), it may decline to accept the certificate. This Court pointed out, in Anurag Baitha's case (supra), that Article 21 does not stop short at the end of the trial, but continues to extend its protective shield even on the post-conviction stage. So far as trial Court is concerned, the jurisdiction to suspend execution of sentence flows from sub-section (3) of Section 389 Cr.P.C., which provides as follows:--, (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,--, where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or. It would, thus, be seen, noted the Supreme Court, Francis Coralie Mullin (supra), that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment, which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the international Covenant on Civil and Political Rights.
It is of utmost importance to note that there is no provision made in sub-section (3) of Section 389 Cr.P.C. The State of Bihar. The argument, raised before the Supreme Court, in Pamapathy (supra), was that when the High Court had once made an order suspending sentence and granting bail to an appellant under Section 426 Cr.P.C., the High Court retained no power to cancel bail subsequently and recommit the appellant to jail-custody. In any case, observed this Court, in Anurag Baitha's case (supra), it is legally impossible to secure monetary damages against the State for wrongful or false imprisonment in such cases. Clause (2) of article 134 leaves it to the Parliament to confer by law any further powers on the Supreme Court to hear appeals in criminal cases. 7. All these are poignantly prominent factors to which one cannot possibly turn the proverbial Nelson's blind eye or to gloss over them as sometime either inevitable or insoluble. 6. It was, thus, contented, in Pamapathy (supra), that if the Legislature intended to confer, on the appellate court, under Section 426 Cr.P.C., the power to cancel bail of an appellant and re-commit the appellant to jail custody, it would have been very easy for the Legislature to add an appropriate sub-section to Section 426 and make express provision for such a power and, hence, in the absence thereof, it would not be permissible to take recourse to the inherent power of the High Court as contained in Section 561A clothing the appellate court with power to cancel bail in a case falling under Section 426 Cr.P.C.
That is why the suspension of the sentence is to be accompanied by reasons to be recorded by the Court in writing. It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights. No two cases are, generally, alike on facts and, therefore, the Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. Hence, the disposal of the Special Leave Petition or of any petition for leave to appeal does not subsume the order from which the appeal arose, for, with the rejection of the petition for leave, no appeal survived.
The circumstances, conceived of above, may be a ground for a temporary reprieve from imprisonment on grounds, which cannot be ignored: such as 10-15 days suspension to solemnise marriage of daughter; to perform the last rituals of deceased father, etc. In Rama Narang vs. Ramesh Narang, reported in MANU/SC/0623/1995 : (1995) 2 SCC 513, a three Judges Bench of the Supreme Court, having considered the question, as to whether an order of conviction can be suspended or not in exercise of powers under Section 389(1), held, speaking through Ahmadi, C.J., as follows:--.
Illustratively, we may state that there may be an occasion before the Appellate Court, when, along with an appeal, a prayer for suspension of sentence is also made on the ground that father of the convict has died and the convict is required to perform the last rites. It is the duty of the Judges to apply the laws, not only to that appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it. The Full Bench of this Court further held, in Anurag Baitha (supra), that if there is any conflict between the constitutional rights flowing from Article 21 and the provisions of Section 389 Cr.P.C., it is the constitutional right, which would override and the legislative provisions have to give way to the constitutional rights and the legislative provisions and, hence, there is no question of harmonizing a constitutional mandate with the supposed limitation under the Cr.P.C. Ansari, J. If all the three requirements, mentioned above, are satisfied, suspension of sentence, under sub-section (3), is, ordinarily, the rule. 25. The certificate itself should give an indication what substantial question of law or principle is involved in the appeal to bring it within the scope of article 134(1)(c). Created by I NET SOLUTIONS. If the person, who faces the accusation of being guilty, is not, ultimately, brought to trial due to the fact that he does not survive or survives in such a shape and condition that he cannot be tried at all, the whole purpose of having a lively scheme of investigation and trial would stand defeated. 6. Learn more. Article 176 – Special address by the Governor. (3) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced. These rights, thus, have a universal application. Such a situation may arise, where the record reveals that the convict, as an accused, had abused bail during trial by means, such as, absconding or intimidating witnesses, etc.
Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges.... 69. Responding to the State's above contention, this Court held, in Anurag Baitha's case (supra), that neither principle nor precedent could be cited for any such constricted view; rather, clearly enough, even under Section 389 Cr.P.C., inordinate delay, in the hearing of substantive appeals, because of the Court's own inability to do so, would be an extremely relevant factor for the grant of bail inasmuch as Section 389 Cr.P.C. 108. The period of bail, as sub-section (3) of Section 389 Cr.P.C. 1746 in Cr. If he is in confinement, the said, court can direct that he be released on bail or on his own bond.
The question, which naturally arises, is: whether Courts, in such cases, can ignore moments of humanitarian distress or enforcement of human rights? The Agreement of licence is not registered as required. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion, observed the Supreme Court, in Sakiri Vasu (supra), that they are implied in the provisions embodied in Section 156(3) Cr.P.C. If Section 389(1) Cr.P.C., is a procedure established by law, whereby liberty of a person can be curtailed, it also has to answer those issues, which are in direct conflict with the right to life of a person, whose liberty is sought to be curtailed. The ratio decidendi of the decision of the Judicial Committee, in Lala Jairam Das (supra), was, therefore, held to be different. If a convicted person is in confinement, the Court can direct that he be released on bail or on his own bond pending decision on his appeal. Marshall rejected the argument that the Organic Act authorized criminal appellate jurisdiction. For the purpose of clarity, sub-sections (1) and (2) of Section 389 Cr.P.C.
And if the High Court does so, then it can be taken to have exercised its discretion wrongly and the certificate purporting to have been granted under article 134(1)(c) will be considered as no certificate and of no avail to the accused.
By the term "life" as here used something more is meant than mere animal existence. Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? The power to enlarge on bail after conviction, though discretionary, is not so wide as is under Chap.-XXXIII relating to bails before conviction. empowers the Appellate Court to cancel bail of a convicted person, whose sentence has been suspended and who has been allowed to go on bail if the Public Prosecutor files an application seeking cancellation of bail and the Appellate Court feels satisfied that a case for cancellation of bail has been made out. The Supreme Court has also a very wide appellate jurisdiction over all Courts and Tribunals in India in as much as it may, in its discretion, grant special leave to appeal under Article 136 of the Constitution from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India. At that point of time, only a copy of the judgment is available on the record of the Appellate Court. In this emotional ritual, father places the right hand of the daughter on the right hand of the groom and the mother pours holy water on the palms of bride and the groom. The Supreme Court must be in a position to know first that the High Court has applied its mind to the matter and not acted mechanically and, secondly, exactly what the High Court’s difficulty is and exactly what points of importance the High Court feels the Supreme Court ought to settle.